Askew v. Commonwealth, Record No. 2062-01-1.
| Decision Date | 20 August 2002 |
| Docket Number | Record No. 2062-01-1. |
| Parties | Demetrius Deangelo ASKEW v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Robert W. Jones, Jr. (Jones & Jones, P.C., on brief), Smithfield, for appellant.
Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: FRANK, HUMPHREYS and AGEE, JJ.
Demetrius Deangelo Askew appeals his convictions after a bench trial, for possession of cocaine, in violation of Code § 18.2-250, and possession of a firearm while in possession of cocaine, in violation of Code § 18.2-308.4(A). Askew contends the trial court erred in denying his motion to suppress the evidence against him, and in ruling that a violation of Code § 18.2-308.4(A) requires a mandatory minimum sentence of five years. For the reasons that follow, we affirm the judgment of the trial court.
On September 14, 2000, at approximately 10:45 p.m., Newport News Vice and Narcotics Division Detective D.M. Best received a telephone call from a known informant. The informant told Best that he had observed a "black male sitting on the steps" at 811 36th Street, Apartment No. 1, in Newport News and that he had observed that the man had cocaine in his pocket. The informant described the man as five feet six inches in height, 145 pounds, with a medium brown complexion, a medium length "afro," wearing a gray T-shirt and black or dark blue pants. This particular informant had worked as a paid informant for the previous three years, and information from the informant had led to over 200 arrests involving drug-related charges. The informant had never relayed unreliable information.
Best immediately contacted officers in the vicinity, who responded to the scene within six minutes. They observed Askew, who matched the informant's description, seated on the steps next to a woman. The officers handcuffed Askew, advised him of his Miranda rights, and told him they had information he was in possession of cocaine. One officer then asked Askew if he wanted to tell him where the cocaine was, and Askew motioned by nodding his head toward the left front pocket of his pants. The officer then recovered the cocaine from Askew's pocket. Upon searching Askew, the officer also recovered a firearm.
At the conclusion of the suppression hearing, Askew argued that the evidence should be suppressed as the information received from the informant, although reliable, did not convey when the informant had observed the information relayed to Officer Best. The trial court denied the motion, finding:
I think it's fairly clear. He said he was outside standing on the steps at this address and they went there within five or six minutes and there he was.
After the subsequent trial, the court convicted Askew of the charges.
During the sentencing hearing of July 18, 2001, the Commonwealth argued that the trial court should impose the "mandatory" five-year sentence on the firearm charge, pursuant to Code § 18.2-308.4(A). The court ruled, "I'm going to go with not mandatory," and sentenced Askew to five years in prison, with four years suspended.
The following day, the Commonwealth filed a motion for re-sentencing, arguing that the trial court should have imposed the mandatory minimum five-year sentence for the firearm conviction. Following the August 1, 2001 hearing on the matter, the trial court modified the sentence to reflect the full five-year sentence. Although Askew argued that the mandatory minimum sentence did not apply to his firearm conviction, he did not object to the trial court's ruling in this regard.
On appeal, Askew contends the trial court erred in denying his motion to suppress the evidence against him, and in re-sentencing him on the firearm conviction, ordering that he serve the full five-year term.
In reviewing a trial court's ruling on a suppression motion, we consider the evidence in the light most favorable to the prevailing party below, the Commonwealth in this instance, granting to it all reasonable inferences fairly deducible therefrom.1
"Ultimate questions of reasonable suspicion and probable cause to make a warrantless search" involve questions of both law and fact and are reviewed de novo on appeal. In performing such analysis, we are bound by the trial court's findings of historical fact unless "plainly wrong" or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.2
Moreover, "[o]n appeal, it is the defendant's burden to show `that the denial of [the] motion to suppress constitute[d] reversible error.'"3 "Our review of the record includes evidence adduced at both the trial and the suppression hearing."4
The United States Supreme Court has held that "a tip from a known informant whose reputation can be assessed and who can be held responsible if [his] allegations turn out to be fabricated" may, standing alone, provide "sufficient indicia of reliability to provide an officer with reasonable suspicion to make an investigatory stop."5 However, "the test of constitutional validity [of a warrantless arrest] is whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an offense has been committed."6 "When the factual basis for probable cause is provided by an informer, the informer's (1) veracity, (2) reliability, and (3) basis of knowledge are `highly relevant' factors in the overall totality-of-the-circumstances probable cause analysis."7 Indeed, the United States Supreme Court has held:
Here, Askew does not dispute the veracity of the informant, or his or her reliability. Instead, Askew's sole contention is that because Officer Best did not testify that the informant relayed to him the particular time during which he or she observed the "black male" sitting on the steps and observed that he had cocaine in his possession, the tip was insufficient to support probable cause for Askew's arrest. We disagree and hold that based on the informant's undisputed history of reliability and under the totality of the circumstances, the predictive nature, as well as the accuracy and detail of the informant's tip and accompanying description, compensated for the alleged deficiency in the basis of the informant's knowledge and provided probable cause for Askew's arrest. Furthermore, the record establishes that the officers observed Askew in the subject location only minutes after receiving the tip.
Askew also contends that the mandatory minimum punishment provided for a violation of Code § 18.2-308.4, which is contained in the third, unlettered paragraph of the code section, applies only to violations of subsection (B) and not to violations of subsection (A).10 We disagree.
Code § 18.2-308.4 provides as follows, in relevant part:
To construe the statute as Askew urges would...
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